Clearing the Road for ‘Motor Voter’ : Wilson should step out of the way of a beneficial law

“Motor Voter,” the National Voter Registration Act of 1993, seeks to raise the notoriously low level of participation in U.S. elections by making it easier to register. The law’s best known and most important provision requires the states, starting Jan. 1, 1995, to allow citizens to register as voters when they are licensed as drivers.

Most states are implementing the law, but some are dragging their feet, and Gov. Pete Wilson has sued to halt implementation in California. His complaint: “Motor Voter” is an “unfunded federal mandate” that would cost the state $20 million better spent in other ways.

Wilson charges that in passing “Motor Voter,” Congress exceeded its powers as enumerated in Article I of the Constitution and violated the 10th Amendment, which reserves “to the States respectively, or to the people” powers not delegated to the federal government.

CLEAR LEGALITY: Does the federal government ever have constitutional authority to compel a state to spend state money for a federal purpose? Article I, Section 4, authorizes the states to regulate elections but adds, without reference to funding, that “the Congress may at any time by law make or alter such regulations.” Article I, Section 8, after enumerating the general powers of Congress, concludes by giving Congress power to make “all laws which shall be necessary and proper” to use those powers.

As we read these provisions, the power to pass legislation like the National Voter Registration Act is delegated to Congress with unusual clarity. This is what makes an unfunded federal mandate regarding elections presumptively legal while many another mandate, such as the 1985 federal law transferring liability for low-level radioactive waste from the federal government to the states, might not be. The Constitution has nothing to say about waste disposal; it has much to say about elections.

Interestingly, Wilson has spent state money freely to bring California, alone among the 50 states, into compliance with the 1985 radioactive waste law whose unconstitutionality he now adduces in support of his challenge to “Motor Voter.” Could it be that the constitutional principle involved in “Motor Voter” concerns the governor less than the law’s likely political effect; namely, the registration of a large number of new, low-income or minority voters who might vote Democratic? By the governor’s own estimate, implementing “Motor Voter” would cost California only a few cents annually per citizen.

BARRIER TO ABUSE: No system is beyond abuse, but once implemented the new system will be better safeguarded against fraud than the old one. After all, California drivers are photographed, fingerprinted and required to show proof of legal residency before they are licensed; anyone may register to vote simply by claiming citizenship. Whether or not this honor system for voters has been abused, it is clearly open to abuse. Happily, “Motor Voter” increases the likelihood that a fraudulent citizenship claim will be reported to the secretary of state. Like Gov. Wilson, we support periodic cleanups of the voter registry. (Under the current system, they have been all too rare.) But unlike the governor, we do not believe that “Motor Voter” would prevent such cleanups.

The charge that “Motor Voter” would lead to fraud is clearly weaker than the charge that, as an unfunded federal mandate, it is unconstitutional. We endorsed “Motor Voter” in 1993 and would like to see it implemented, but better to have a clear legal challenge and resolution than to have a law whose implementation depends on which party is in office. Is this unfunded mandate unconstitutional? The courts will decide. Meanwhile, California has the lowest rate of voter registration in the country. No one should be happy about that.